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2024 DIGILAW 350 (CAL)

Arup Kumar Bhaumik v. State of West Bengal

2024-02-16

SUBHENDU SAMANTA

body2024
JUDGMENT : Subhendu Samanta, J. 1. The instant writ petition has been filed by the writ petitioner challenging an order dated 01.06.2020 issued by the Chairman of Board of Governors of respondent college namely RCCIIT Institute of Information Technology (RCCIIT), terminating the service of the petitioner as principal on probation of the college, pursuant to the decision taken at the meeting of the Board of Governors dated 29.05.2020. 2. During the final hearing of the instant writ petition the respondent No. 7 and 8 raised point of maintainability of the writ petition on the ground that RCCIIT is not not amenable to writ jurisdiction. 3. This Court think it necessary to hear the point of maintainability before entering into the merit. Accordingly, the point of maintainability of this writ petition is heard on behalf of the parties. 4. Learned Advocate Mr. Saptansu Basu submits that RCCIIT is self financed engineering college which is established under an autonomous society. The affairs of the college was managed and controlled by Governing Body with the nomencletcher “Board of Governors”. The members of Governing Body of the college are selected by the Board of Management of the Society and are not nominated by the government of West Bengal. Mr. Basu Further argued the service conditions of the employees of the college are governed by the service rules of the college. The service rules of the college having not been framed in pursuance to in delegated powers of the State and hence the same do not have any statutory force. The service rules of the college simply defined the service contract between the employer and its employees and the same is solely within the private law domain. 5. Employees of the college are not recruited or recommended by the West Bengal College Service Commission. Such persons are recruited through the advertisement by the college in newspapers and recommended by the screening committee on the basis of their performances by interview. 6. Mr. Basu further argued that the college dose not receive any recurring grounds from the State Government. The State Government does not pay the salary of the stuff of the college or any component of such amount payable, from its own exchequer. The college bears the burden of paying the salary of its stuff from its own funds, especially from the tuition fees collected from the students. Mr. The State Government does not pay the salary of the stuff of the college or any component of such amount payable, from its own exchequer. The college bears the burden of paying the salary of its stuff from its own funds, especially from the tuition fees collected from the students. Mr. Basu further argued the State Government does not exercise deep and all pervasive control over the administrative, financial and functional aspect of the college. 7. On the basis of that argument Mr. Basu, argued that the respondent college is not “stafe” within the meaning of Section 12 of Constitution of India and hence, it is not amenable to the writ jurisdiction of the High Court. Mr. Basu, further argued that the AICE by its notification No. F. No. 37-3/Legal dated 10.12.2010 defined Government aided institutions to mean, a technical institution that meets 50% or more of its recurring expenditure out of the ground received from the Government or Government Organisations. In terms of the said notification the respondent college does not qualified to be a Government aided institutions. Finally he argued the instant writ petition is not maintainable and liable to be dismissed in limini. 8. In support of his contention he cited a decision of Hon’ble Apex Court in St. Mary’s Education Society & Anr. Vs. Rajendra Prasad Bhargava and Ors. (2023) 4 SCC 498 . 9. Mr. Ranajeet Chatterjee, Learned Advocate appearing on behalf of the petitioner submits that the point of maintainability has already been decided by two Co-ordinate Benches of this court. He argued that the Hon’ble Co-ordinate Bench in WP No. 13874 (w) of 2016 categorically analysed the issued regarding the point of maintainability. The Co-ordinate Bench has took note about the formation and power of Governing Body of RCCIIT and also has perused the formations and procedure of appointment of Board of Management of RCCIIT. 10. Learned Co-ordinate Bench has also categorised that all the members of the society are nominated by the Department of Higher Education, Government of West Bengal. For any expulsion of the permanent or any member from the Board of Management, the consent of Department of Higher Education, Government of West Bengal was required; in the event of any vacancy accruing in the board due to resignation and otherwise, it has to be filled by the nomination of the department of Higher Education Government of West Bengal. 11. 11. The Chairman of the Board and members were nominated by the Department of Higher Education; observing the functions of the Board of Management of RCCIIT the Coordinate bench is of opinion that-- “The ultimate conclusion was that, if in the cumulative assessment of the fact, it was found that the State played a dominant role functionally and administratively over a body, would amenable to the writ jurisdiction under Article 226 of the Constitution of India.” 12. The decision of the Hon’ble Co-ordinate Bench in WP 13874 (w) of 2016 was followed by another Co-ordinate Bench in WPA 547 of 2020 and held that – 22. The Co-ordinate bench further observed as follows-“The members of the society were nominated by the Government of West Bengal and the Board of Management of the society framed the rules and regulations governing the said college. In the instant case, the pervasive control of the Department of Higher Education, Government of West Bengal, with regard to the formation of the society and its administration is obvious. The said college is run by the said society and the college has been described as a unit of the society which was an autonomous body of the Department of Higher-Education, Government of West Bengal. In all official documents, the college has been described as a government aided college.” 23. The Institute is imparting technical and higher education to the public in general. Imparting education is undoubtedly a public duty. It is well settled that the actions of the body discharging a public function or performing a public duty is amenable to judicial review by Constitutional Courts. The Co-ordinate bench, after taking into consideration the various documents including the Memorandum of Association, the Articles of Association as well as the fact that the members of the society were nominated by the Government of West Bengal arrived at a finding that the pervasive control of the Department of Higher Education, Government of West Bengal with regard to formation of the society and its administration is obvious. This Court is not inclined to take a different view merely because of the fact that the maintainability issue has been left open in an appeal arising out of the said decision. Pendency of the appeal cannot in any event destroy the binding effect of the said decision. 24. This Court is not inclined to take a different view merely because of the fact that the maintainability issue has been left open in an appeal arising out of the said decision. Pendency of the appeal cannot in any event destroy the binding effect of the said decision. 24. This Court, therefore, holds that the actions of the Institute is amenable to Judicial Review by this Court. 13. Mr. Chatterjee further argued that the judgment of two Co-ordinate Bench is binding upon every other Co-ordinate Bench of this Court and to maintain and judicial discipline, the decision of two Co-ordinate Benches on the selfsame issue has to be decided accordingly. 14. In support of his contention he cited a decision of Hon’ble Supreme Court passed in GL Batra Vs. State of Hariyana and Ors. (2014) 13 SCC 759 . 15. Heard the Learned Advocates, perused the decisions cited by the Learned Advocates for the petitioner as well as the respondent No. 7 and 8. The two Co-ordinate Benches of this Court has decided the issue that the respondent college is amenable to the writ jurisdiction under Article 226 of the Constitution of India. It is true that the Hon’ble Apex Court in St. Mary’s Education Society & Anr. (Supra) has decided the issue of maintainability of writ petition against the private body, discharging a public function. The law laid down by the Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra) has not been placed before the Hon’ble Coordinate bench in WP 13874(w) of 2016. 16. The ratio of St. Mary’s Education Society & Anr. (Supra) was placed before the another Co-ordinate Bench in WPA 574 of 2020 but the Learned Co-ordinate Bench has not discussed the ratio of law in the body of the judgment. Thus it appears that the law and the ratio laid down by the Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra) has not been dealt with by any of the Co-ordinate Bench who has decided the issue of maintainability earlier. 17. The Hon’ble Division Bench in MAT 296 of 2020 has opined that the point of maintainability of writ petition against RCCIIT is kept upon. Thus, I find no encumbrances to decided the issue of maintainability on the basis of law laid down by the Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra). 18. 17. The Hon’ble Division Bench in MAT 296 of 2020 has opined that the point of maintainability of writ petition against RCCIIT is kept upon. Thus, I find no encumbrances to decided the issue of maintainability on the basis of law laid down by the Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra). 18. It is the dictum of the Article 226 of the Constitution of India that a person or authority defined as a “State” under Article 12 of the Constitution of India; and the instrumentality of the “State” may come under the purview of judicial review. A body having statutory recognition and or a body performing public duty is amenable to writ jurisdiction. 19. The Hon’ble Supreme Court in St. Mary’s Education Society & Anr. has decided the issue as follows: 75. we may sum up our final conclusions as under: 75.1 An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.2 Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory-provisions or the employer had the status of “State within the expansive definition under Article 12 or it was found that the action complained of has public law element. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory-provisions or the employer had the status of “State within the expansive definition under Article 12 or it was found that the action complained of has public law element. 75.3 It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a “public function” or “public duty” be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. 75.4 Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and on the basis of interference in discharge of public duty. 75.5 From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character. 20. Following the decision of Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra) it appears to me that the RCCIIT is self financed institution having no statutory recognition; though, performing public duty by imparting education, but its decision under challenge against the present petitioner is basically a service contract and did not involve public element. 21. The functional and administrative control of the “State” over the college without any statutory recognition, amenable to writ jurisdiction, only when question regarding “control” of the “State” over the college is in issue. In the present case, the functional or administrative control of the “State” is not in issue. 22. Accordingly I am of a view that the instant writ petition is not maintainable as the issue involved is not amenable to the judicial review by this court. 23. The decision of this court appears to me in conflict with the decision of Learned Two Co-ordinate benches, who decided the issues earlier. In this situation, the observation of Hon’ble Supreme Court in G.L. Batra (Supra) is required to be followed: 15.1. In Vijay Laxmi Sadho v. Jagdish, this Court held as follows : “33. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well-settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of “different arguments” or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial-procedure and it must be respected at all costs.” 15.2. In State of Bihar v. Kalika Kuer this Court held that when “an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of coordinate jurisdiction”. This Court held that : “10.....easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways – either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. 24. Following the ratio in Gl Batra (Supra), I am of a view that the earlier decision appears to me incorrect on the ground that the law laid down by the Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra) was not placed or dealt with by any of the Learned Co-ordinate Benches earlier. 25. 24. Following the ratio in Gl Batra (Supra), I am of a view that the earlier decision appears to me incorrect on the ground that the law laid down by the Hon’ble Supreme Court in St. Mary’s Education Society & Anr. (Supra) was not placed or dealt with by any of the Learned Co-ordinate Benches earlier. 25. At this juncture to maintain the judicial discipline and for the purpose of the uniformity of decisions of this court, it is necessary to place the matter before the Hon’ble Chief Justice, so that the matter may be referred to Larger Bench for resolution of the issue. 26. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.